Date: December 15, 2025
On December 9, 2025, USPTO Director John A. Squires submitted a letter to Congress that may signal a turning point in one of the most enduring anomalies in American intellectual property law: the absence of a public performance right for sound recordings broadcast over terrestrial radio. For practitioners who have watched this issue evolve over decades, the USPTO’s formal endorsement of legislative reform adds significant institutional weight to a long-overdue conversation about fair compensation for copyright owners and performers.
The Regulatory Asymmetry at Issue
Under current U.S. copyright law, the exclusive rights of sound recording copyright owners do not include a general public performance right under 17 U.S.C. § 114(a) (stating that the exclusive rights of the owner of copyright in a sound recording do not include any rights of performance under 17 U.S.C. § 106(4)). While the Digital Performance Right in Sound Recordings Act of 1995 and the Digital Millennium Copyright Act of 1998 extended performance rights to digital transmissions—covering services such as SiriusXM, Pandora, and iHeartRadio’s streaming platforms—terrestrial AM/FM broadcasts have remained exempt.
This creates a striking regulatory asymmetry: when a radio station streams a song online, it pays performance royalties to the sound recording’s copyright owner through SoundExchange. When it broadcasts that same recording over the airwaves, it pays nothing. The songwriter and music publisher receive compensation through ASCAP, BMI, or SESAC licensing, but the performing artist and record label do not.
This disparity has persisted since federal copyright protection was first extended to sound recordings in 1972. Congress has periodically revisited the issue—the Register of Copyrights recommended establishing a performance right as early as 1978—but legislative efforts have consistently stalled in the face of opposition from the broadcast industry.
The USPTO’s Position
Director Squires’ letter represents the USPTO’s formal support for amending the Copyright Act to require radio stations to provide fair compensation when sound recordings are broadcast over the air. The letter specifically endorses the policy objectives underlying the American Music Fairness Act (AMFA), currently pending before Congress as H.R. 861 and S. 326.
“[I]n today’s digital music marketplace, where performers and record labels face both unprecedented challenges and opportunities, providing incentives for America’s performing artists and recording companies is particularly essential and fair.”
— USPTO Director John A. Squires
The USPTO’s intervention is notable for several reasons. First, it adds the executive branch’s principal intellectual property agency to the growing chorus of voices calling for reform. Second, it acknowledges the fundamental shift in how music is consumed: streaming services now account for approximately 74% of U.S. recorded music revenues, undermining the historical argument that radio airplay drives album sales and thus provides adequate indirect compensation to artists.
The International Dimension: A $200 Million Annual Gap
Perhaps the most compelling policy argument advanced by the USPTO concerns international reciprocity. Most industrialized nations recognize a public performance right for sound recordings across all broadcast media. Under principles of national treatment and reciprocity embedded in international copyright frameworks, foreign collecting societies withhold royalties from American artists when their recordings are played abroad—precisely because the United States does not extend equivalent rights domestically.
The result is an estimated $200 million annual gap in royalties that American performers and labels would otherwise receive from foreign broadcasters. Closing this gap would put the United States “in step with other countries that rightfully recognize a public performance right for the broadcasting of sound recordings.”
The company the United States keeps on this issue is telling. Among developed economies, only the U.S., Iran, and North Korea fail to recognize a terrestrial radio performance right for sound recordings. This places American copyright law at odds not only with our European trading partners but also with China, which does recognize such rights.
The American Music Fairness Act Framework
The legislation the USPTO supports would integrate terrestrial broadcasts into the existing statutory licensing framework under 17 U.S.C. § 114. Rather than requiring individualized negotiations between broadcasters and copyright owners, the Copyright Royalty Board would establish royalty rates for terrestrial broadcasts, similar to the process currently used for digital transmissions.
Recognizing the economic realities facing local broadcasters, AMFA includes a tiered structure with meaningful protections for smaller stations. Commercial stations with annual revenues under $1.5 million—whose parent companies also fall below $10 million in total revenue the preceding calendar year—would pay a flat fee of $500 annually. Noncommercial, public, and college stations would pay as little as $100 or even $10 per year, depending on their classification, annual revenue, and revenue of the parent companies.
This graduated approach attempts to balance competing interests: ensuring that performing artists receive fair compensation for the commercial exploitation of their work, while avoiding undue burden on community-focused broadcasters that provide essential local services.
Strategic Implications for Copyright Owners
For those with interests in sound recording copyrights—whether as performing artists, record labels, or investors in music catalogs—these developments warrant close attention. The convergence of USPTO support, bipartisan legislative momentum, and recent high-profile advocacy (including testimony from Gene Simmons and other artists before the Senate Judiciary Committee’s Intellectual Property Subcommittee on December 9) suggests that the legislative landscape may be shifting.
Rights holders should consider reviewing their existing licensing arrangements, catalog valuations, and international collection mechanisms in light of potential legislative changes. Should AMFA or similar legislation pass, the establishment of a terrestrial performance right would create new revenue streams and potentially enhance the value of sound recording catalogs.
Looking Ahead
The USPTO’s letter represents a significant institutional endorsement of copyright reform that has been advocated for nearly five decades. While legislative outcomes remain uncertain, the combination of changing market dynamics, international pressure, and growing bipartisan support suggests that this long-standing gap in American intellectual property law may finally be addressed.
At Devlin Law Firm, we continue to monitor these developments and advise clients on the evolving landscape of intellectual property rights in the digital age. For questions regarding copyright protection, licensing strategies, or the potential impact of legislative changes on your intellectual property portfolio, please contact our team.
Disclaimer: The information provided in this article is for general informational purposes only and should not be construed as legal advice. Every situation is unique, and the law may apply differently depending on specific facts and circumstances. This article does not create an attorney-client relationship between you and Devlin Law Firm LLC. If you have questions about how these developments may affect your intellectual property rights, please contact a qualified attorney
Contact:
Robyn T. Williams
correspondence@devlinlawfirm.com
Devlin Law Firm
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